The Gazette 1991

GAZETTE

OCTOBER 1991

representatives of the victims's

estate and their "dates of know-

ledge" are different, the earliest

date is the one which is relevant for

the purpose of determining the

commencement of the period of

limitation.

Wrongful death: the ordinary

period

Section 48 (6) of the Civil Liability

Act, 1961, js repealed

and the

period of limitation of three years

from the date of the death specified

by that provision in the case of

wrongful death actions under Part

IV of that Act is extended by

section 6 of the Act of 1991. The

new period of limitation is the

period of three years from the date

of the death or the "date of

knowledge" of the person for

whose benefit the action is

brought,

whichever is the later.

In other words, want of "know-

ledge" on the part of a dependant

concerning the injury wh i ch

occasioned the death of the de-

ceased postpones the operation of

the limitation period. Where there

are a number of dependants for

whose benefit the wrongful death

action is brought, this limitation

period applies in respect of the

claim of each so that the claim of

one may be barred while the claim

of another or others who acquired

"knowledge" concerning the injury

which occasioned the death only

later are allowed to succeed.

However, a dependant's claim will

not be barred, notwithstanding the

expiry of this limitation period in

respect of his/her claim, if that

dependant could, were s/he the

sole dependant, rely upon some

further ground for defeating the

operation of such period of limita-

tion whether by reason of an exten-

sion of time afforded to persons

under a disability under section 5

of the Act of 1991 or an agreement

between the parties not to raise the

defence or otherwise.

Special period for disability

An extension of the ordinary

limitation period in personal injury

and wrongful death actions is

allowed to persons "under a

disability." Section 48 of the

Statute of Limitations, 1957,

provides that a person shall be

deemed to be "under a disability"

while he is an infant or person of

unsound mind or a convict subject

to the operation of the Forfeiture

Act, 1870, in whose case no

administrator or curator has been

appointed under the latter Act. A

person is conclusively deemed to

be of "unsound mind" while he is

detained in pursuance of any enact-

ment authorising the detention of

persons of unsound mind or

criminal lunatics;

but the de-

finition of "person of unsound

mind" in this context is not limited

to persons so detained

and in

Kirby -v- Leather

the Court of

Appeal held a person to be of

"unsound mind" when incapable,

by reason of mental illness, of

managing his affairs in relation to

the accident as a reasonable

person would do. Section 5(1) of

the Act of 1991 provides that

where, in the case of personal

injury claims and claims for

wrongful death under Part IV of the

Civil Liability Act, 1961, " t he

person having the right to bring the

action was under a disability either

at the time when that right accrued

to him or at the date of his

knowledge, the action may be

brought at any time before the

expiration of three years from the

date when he ceased to be under

a disability or died, whichever event

first occurred, "notwithstanding, in

the case of personal injury actions,

that the period specified in section

3 of the Act of 1991, i.e., the

'ordinary period of limitation,' has

expired. In other words, in the case

of such persons, a special period of

limitation of three years from the

date of termination of the disabil-

ity or the date of death of the

person under the disability,

whichever first occurs, applies.

This special period of limitation

does not apply, however, in the

case of a cause of action

"... in the case of such

persons', a special period of

limitation of three years

from the date of termination

of the disability on the date

of death of the person

under the disability,

whichever first occurs,

applies."

which is vested in a person not

under a disability and is then trans-

mitted to a person under a dis-

ability.

Moreover, where a cause

of action accrues to a person under

a disability and that person dies

while still under a disability with the

result that his/her cause of action is

transmitted to another person under

a disability, no further extension of

time is allowed by reason of the

disability of the second person.

Dismissal for want of pro-

secution or for fairness

Order 27, r. 1, R.S.C., 1986, provides

that:

"If the plaintiff, being bound to

deliver a statement of claim, does

not deliver the same within the

time allowed for that purpose, the

defendant may, at the expiration

of that time, apply to the court to

dismiss the action, with costs, for

want of prosecution; and on the

hearing of such application the

Court may order the action to be

dismissed accordingly, or may

make such other order on such

terms as the Court shall think

just."

Rainsford -v- Corporation of

Limerick

Finlay, P., in the High

Court, considered whether an order

of the Master of the High Court

extending the time within which

the plaintiff might deliver a state-

ment of claim ought to be set aside

and the action dismissed for want

of prosecution in circumstances

where the plaintiff's accident had

" . . want of 'knowledge' on the part of a dependant

concerning the injury which occasioned the death of the

deceased postpones the operation of the limitation

period."

309